misappropriation of $115 from client funds delivered in trust; one year actual suspension
How later courts described this case
- misappropriation of $115 from client funds delivered in trust; one year actual suspension
Written by the judges who cited it.
The opinion
LUCAS, J.
I dissent. I disagree with my colleagues that the review department has proven by convincing evidence to a reasonable certainty that petitioner misappropriated the $5,943 check that was supposed to be paid to the Internal Revenue Service (IRS). Neither petitioner nor the State Bar has submitted any documentation from the IRS proving the lien at issue was not paid off. No proof was even made that the penalty assessed by the IRS on Mrs. Daniel was for nonpayment of the lien at issue. Under these circumstances, I believe the State Bar should have the burden of producing documentation proving petitioner did not pay the IRS lien.
There is no question that petitioner was not as careful as he should have been in handling the funds and that he failed to give Daniel or Uneedus a full accounting. But, on this record, I am not convinced to a reasonable certainty that petitioner is to blame for the penalty assessed by the IRS on Mrs. Daniel, and thus I am uncertain that petitioner deserves the discipline proposed by the majority. I would remand for a de novo hearing before the State Bar.